23 September 2009

One of the fallback positions for purveyors of FUD is that the GNU GPL may not be valid, because it hasn't been properly tested in court. That's getting increasingly implausible as a stance. After being upheld in Germany a few times, here's a big decision in its favour in France:

In a landmark ruling that will set legal precedent, the Paris Court of Appeals decided last week that the company Edu4 violated the terms of the GNU General Public License (GPL) when it distributed binary copies of the remote desktop access software VNC but denied users access to its corresponding source code. The suit was filed by Association pour la formation professionnelle des adultes (AFPA), a French education organization.

...

The events of the case go back to early 2000, when Edu4 was hired to provide new computer equipment in AFPA's classrooms. Shortly thereafter, AFPA discovered that VNC was distributed with this equipment. Despite repeated requests, with mediation from the Free Software Foundation France, Edu4 refused to provide AFPA with the source code to this version of VNC. Furthermore, FSF France later discovered that Edu4 had removed copyright and license notices in the software. All of these activities violate the terms of the GNU GPL. AFPA filed suit in 2002 to protect its rights and obtain the source code.

There are a couple of important points about this decision. The first is noted in the post quoted above:

"what makes this ruling unique is the fact that the suit was filed by a user of the software, instead of a copyright holder. It's a commonly held belief that only the copyright holder of a work can enforce the license's terms - but that's not true in France. People who received software under the GNU GPL can also request compliance, since the license grants them rights from the authors."

The other point flows from this. The French legal system has many novel aspects, so it's important that the GNU GPL was upheld here, just as it was in Germany. It means that not only is the approach that the GPL takes being upheld by courts, it is being upheld in courts that look at things from different legal perspectives. That augurs well for future rulings in other jurisdictions.

19 comments:

Mmm... happy, but not enough.GPL, CC or wherever open license does not be tested before a court in a civil-law-country. That's the case of France, Germany and European and Latin-American countries in general. The judicial precedent is just an issue for common law countries.Then... it forces us to understand two things about this decision in particular:1.- First: It is totally irrelevant as a precedent. No one common-law-country court is going to feel force for a precedent in a civil-law-country court. So... let's go for a real precedent.2.- Second: It tests that another civil-law-country court /French in this case) have recognized that an open license is enforceable. However, it does not mean that another court thinks different in other case. After all, in those countries previous court decision are not precedent, do not force future decisions.Actually, in a civil law country, we do not need really the judicial case, but it is always good no know that courts support the validity of the license.Then, happy, but still not enough.Best,A.

@alberto: I'm not suggesting this will be a legal precedent for other courts: I'm saying that statistically it increases the sample size, so it makes it more *likely* that other courts will follow suit because they follow the same line of thinking.

I hope so. I really hope so. I have worked in several open license project with the deep conviction they are legal. And, of course, I like a French court, among others, supports our believes. But, I still do not know any court that bases its legal decision on statistics.

If you have 100 coins *that might be biased* and the first 10 chosen come up heads, there is a large statistical likelihood that most of the remaining ones come up heads as well. Why? Because if you consider all the possibilities where 10 heads come up first (from where the bias favors heads 100% all the way to where heads are favored .000000001%) most of the cases where these 10 initial heads happen as a medium or high probability event are the cases where heads have a bias in their favor, meaning that a random test would be more likely than not to yield a head. [I don't think this explanation is exactly what would define the expectation of heads to tails ratio, but I think it is close.]

I said "that might be biased" because the outcome of a random GPL case testing for GPL validity is *not* a random event with equal probability of fail or success (50-50) based on the host country's set of laws applied correctly. Rather, most bodies of laws around the world have many similarities (esp, among well-developed countries likely to have high computer usage) because people around the world have found common needs (and value systems to help meet those needs) and also want to do business together. A part of a random person's sense of right and wrong is based on culture but a very real part is based on characteristics common with all humans. And of course, if we have to interact, having similar laws reduces friction and increases ultimate satisfaction in many cases.

BTW, if the "coins" are not biased, then the odds of the next country ruling favorably is exactly 50%. However, as just discussed above, the laws of all lands are not decoupled/independent.

You touched on this with your common law vs civil law discussion, I think, but perhaps analyzed improperly.. unless you know something about the probabilities that you are not sharing. As Glyn said, not knowing anything, the expectations that the next result is favorable is increased.

BTW, we know that the laws of countries are already defined, but not knowing the details means we should consider as many possibilities as we can think of and then usually "expect" to see the scenarios that cover the most number of cases we were able to think up (each individual case (event) assumed to be as likely as the next or else adjusted to a likelihood reflective of whatever knowledge we might have).

Every new piece of information we learn adjusts our calculated expectation. And, yes, the analysis I gave in the earlier comment was rough and did not carefully consider every single piece of information I could muster. And, yes, 10 out 10 is different than 2 (france, germany) out of 2, but I wanted to help convey the point a little better by picking a longer streak.

You are totally right, about expectations, even when the coins could not be the best example. If we have more and more national court decisions that support open license, we can expect more similar decisions in the future.

However, my point is, those decision were made in Germany and France. They are not a precedent for a common law country (specially US) and they do not serve as a precedent even in the same civil law country. As Daniel says, another EU court can "look at the case", but they are not forced to follow the decision or criteria even.

Then, we have mere expectations, not rules. Anyway, having good expectations is the best we can get right now in civil law countries, I think.

Hello, This is good news.From the facts it seems that AFPA is not just any user but actually has a contractual relationship w/ EDU4. Does this have any play in the decision at all? I saw a link to the decision on FSF France site but unfortunately I don't know enough French to find out the answer myself. Do you happen to have any idea?Thanks.

@kathy: my French can't penetrate the impenetrable legalese of the French document to discern that, but the English language site I linked to had this: "People who received software under the GNU GPL can also request compliance, since the license grants them rights from the authors."

This suggests that *anyone* granted thsoe rights by the original software authors can sue.

Actually, I am not sure that the reasoning is true only in France. In several countries exist contract that you can celebrate with a third part as a beneficiar, as similar with a life insurance contract. In Spanish we call them "contrato en favor de otro", and "estipulación en favor de un tercero", among other.In this case, GPL guarantte several right not just for the copyright holder, but also to future users.Unfortunately, my French is even worst than my English. :-(Best,A.

One must not ignore current reciprocity of laws between France, the USA and other countries. The US and all members of the EU are signatories to THREE significant documents in this area, which makes rulings in France, regardless of whether one considers it a country to be under "civil law" or otherwise.

First, they are signatory to the Universal Copyright Convention as revised on 24 July 1971http://erc.unesco.org/cp/convention.asp?KO=15241&language=ESecond, they are signatory to the Berne Conventionhttp://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15Third, they are signatory to the WIPO Copyright Treatyhttp://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=16So, yes, this ruling is significant not only in France but in countries which are signatories to the reciprocity agreements with France signed.

Did the French court apply one of those treaties? Do those treaties say that a domestic court decision is a precedent in another signatory country? Are those treaty self-executing in a country?Do not they required implementation in the domestic law?Do anybody have a copy of the court decision in English or Spanish?

About Me

I have been a technology journalist and consultant for 30 years, covering
the Internet since March 1994, and the free software world since 1995.

One early feature I wrote was for Wired in 1997:
The Greatest OS that (N)ever Was.
My most recent books are Rebel Code: Linux and the Open Source Revolution, and Digital Code of Life: How Bioinformatics is Revolutionizing Science, Medicine and Business.